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Friday May 14, 2021

Section 6(b) Myths and Facts

Alan H. Schoem was with the Commission in various capacities from June 1973 until September 2004. From 1979 to 1986 he was the CPSC’s Assistant General Counsel responsible for federal court enforcement and information disclosure. From 1997-2004, he was the Director of the CPSC’s Office of Compliance.


PSL welcomes such opinion pieces. Inclusion is not an indication of agreement or disagreement – simply that the contents likely are of interest to readers.

As the CPSC lawyer previously responsible for interpreting and enforcing the information disclosure provisions in the Consumer Product Safety Act known as “6(b)”, I thought providing some factual information may help all to better understand that while CPSC must take certain legal steps prior to releasing certain information, 6(b) is not the “gag order” it is portrayed to be.


While 6(b) is unique to CPSC, I believe the CPSC has the necessary tools to overcome any concerns about 6(b)’s limits on the release of information to address a risk a product presents to the public health and safety. CPSC already has the authority to disclose information to protect the public health and safety without approval of a manufacturer or private labeler and I believe it could have done so for the Peloton Tread+ and the Fisher Price Rock n’ Play Sleeper, for example, without apparently waiting weeks to publicize the hazards. Perhaps the focus of the agency should be on allocating the necessary staffing and management to achieve success rather than blaming section 6(b) on what appears to be agency inefficiency.


Section 6(b) requires the Commission to give manufacturers and private labelers 15 days advance notice and an opportunity to comment on information from which the public can readily identify those firms from the information. It does not require the approval of a manufacturer or private labeler. The Commission also is required to give those firms 5 days advance notice of its proposed disclosure if it rejects a manufacturers or private labeler’s claim that information the Commission proposes to disclose is inaccurate.


But there is a major and significant exception to these notice requirements. If the Commission publishes a “finding” that the public health and safety requires a lesser period of notice, it can waive the 15 and 5 days advance notice requirements. And with enactment of the Consumer Product Safety Improvement Act of 2008, this finding no longer must be published in the Federal Register. It must merely be “published” and, in my view, can be published in whatever form the Commission determines is appropriate which could be merely issuing a public statement of its finding as part of a warning to the public.


Another provision in the Commission’s statutes prohibits the Commission from disclosing information about a safety hazard provided to it by a manufacturer under the CPSC’s mandatory reporting requirement, known as section 15(b), unless certain conditions are met. While I believe this prohibition provides incentive to firms to report to CPSC, CPSC has the authority to overcome this prohibition in several ways. One way is by filing a lawsuit seeking to compel a recall. Another way is by using its authority to make that public health and safety finding and then alerting the public to what the Commission believes is a product hazard.


In giving advance notice to a manufacturer or private labeler of its intent to disclose safety information that identifies the firm, CPSC can give notice orally rather than in writing; and it could give minimal advance notice if it believes the circumstances warrant, 24 hours or even less, for example.


I believe it is disingenuous on the part of the critics of section 6(b) to claim that 6(b) prevents the Commission from acting quickly to warn the public about a product hazard. As an observer with expertise in the area of 6(b), what appears to prevent the Commission from acting quickly is the Commission itself and its seeming inability to understand and use its existing authority.


The Commission apparently knew about the deaths associated with the Rock N’ Play but did not alert the public until it inadvertently disclosed the information to Consumer Reports. Similarly, the Commission apparently had information about the dangers of certain Peloton treadmills but did not act immediately to notify the public or to file a lawsuit to seek a recall. While 6(b) authorizes a firm to file a lawsuit to seek to prevent the Commission from disclosing what the firm believes to be inaccurate information, such a lawsuit is extremely rare, if it has even ever been used, and usually would be practically ineffectual – the information would be in a public docket. In any event, the Consumer Product Safety Act gives the Commission authority to seek expedited court review in the unlikely event such a lawsuit is filed and requires the courts to give precedence to and expedite such a lawsuit.


Indeed, the authority of the Commission to make unilateral public announcements about a product and to use the emergency exceptions to do so quickly are powerful and potentially devastating to a company. Thus, it is important that these powers be used only with the utmost discipline and only in those situations where the circumstances warrant it. In most cases, if the matter is serious enough for the Commission to make a unilateral announcement about a product hazard, then why wouldn’t it accompany that announcement with an administrative complaint or judicial lawsuit reflecting the seriousness of the situation?


Regarding CPSC filing a lawsuit to compel a recall, yes, litigation can be lengthy and resource intensive but if the Commission does not use its litigation authority, there is less incentive to cooperate with CPSC. When I was Director of the Office of Compliance from 1997-2004, we filed approximately 12 lawsuits seeking recalls. We used the authority in the statute rather than blaming the provisions of 6(b) as preventing us from acting. And if CPSC files a lawsuit to seek a recall, it also can go to federal court to seek an injunction to stop the sale of a product while the lawsuit is pending. CPSC also has the authority to go to court in its own name if it believes a product presents an imminent hazard.


I believe 6(b) is only an impediment to warning the public about product hazards if the Commission fails to use the authority it has under the statues it administers.